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mikecody0318 says

I wonder if anyone realized the irony of a group who were called upon to modify the Articles of Confederation and wound up replacing them debating the problem of a future group called upon to modify the Constitution rewriting it?

When the passionate faction is the majority, there is no is no end to the damage they can do. I don’t think there is any really good way to save people from themselves. What is extra scary is that even if people change their minds, some decisions are very hard to undo or have lasting consequences once they have reached a certain point (prohibition, war and global warming spring to mind).

This begs the question of how you’re supposed to save the day if and when the passionate majority does untold damage, wreaking havoc “legally” across the sociopolitical landscape. Deregulation sticks out in my mind more than Prohibition, admittedly, but y’know.

This is a powerful dilemma in the modern United States! In fact, I have argued elsewhere that we are at a critical juncture in how we handle it.

The dilemma is this: What do you do when your house is on fire, but you cannot put it out through the democratic process, because the opposition is too numerous?

I’ll be covering this in MUCH more detail when we get to executive power (which we’ll be covering a LOT sooner than is usual in Con Law). But there is an unsettling trend towards bypassing the democratic process entirely when it won’t give an administration what it wants. It’s increasingly common to make an end run around the voters, instead relying on presidential fiat, the regulatory agencies and the courts to impose rules notwithstanding the opposition. Activist groups (on both sides of the spectrum, but admittedly more often on the left) also resort to agencies and courts to get what they cannot achieve legislatively.

The end-run strategy is self-defeating. Yes, it imposes the desired answer, but at incredible and unnecessary cost. And in the end, it’s not even a solution.

What happens is the debate isn’t ended — it’s entrenched! The opposition rightly feels that they had no say, that the rule was imposed on them without — despite — their input. They aren’t going to shut up. They’re only going to get louder in their pursuit of what’s right. Ordinarily, when the opposition believes that a rule is the result of a legitimate process, they will perceive the rule as legitimate. They may not like it, but they are much more likely to accept it and move on. But when they feel it was illegitimately imposed, they see the rule itself as illegitimate. They will rail against it. Their opposition may even increase in reaction to the perceived illegitimacy. They will fight to restore fairness. Worse, moderate views (which probably would have ultimately prevailed in the necessary compromise of democracy) get thrown out the window. What’s left? The extremes! And by definition they remain irreconcilable.

The result is that society is prevented from moving on. The debate that should have been resolved decades ago will continue to rankle and divide people. Political divisions deepen and widen. The positions become deeply personal, even part of one’s identity, to the point that disagreement is felt as a personal attack.

The executive/judicial end run is more and more the easy way out. And it is one of the root causes of the increasingly vitriolic entrenchment of right and left in the U.S. since WWII.

What’s the right way to solve the problem? The hard way. Not tyrannical imposition but skillful persuasion. Not us-against-them conflict, but cooperation and compromise to put the damn fire out. Understanding where the other side is coming from, so you can persuade them that this really is the right solution even from their perspective.

It requires patience, not petulance. We haven’t seen that in a long, long time.

In fact (spoiler alert?) the delegates at the Constitutional Convention wrestled with this very dilemma… and failed spectacularly. Which we’ll see in exactly 4 pages!

(How long until we SEE the next four pages? Um… I dunno? I mean, I’ve had this thing fully scripted for ages, it’s just a matter of finding time to stage, ink, edit, and color the damn thing! If any of you know a wealthy patron of arts and education who’ll pay my rent — without [and this is the killer] telling me what to say — I would absolutely do this full-time…)

Anyway, you want to save the day when there’s a passionate majority on the wrong side? Americans generally want to do the right thing. But Americans also generally resent being forced to do the right thing. Telling them they have to, that they’re idiots or elitists or awful if they oppose you, that yours is the received wisdom that cannot be disputed, only ensures that the opposition digs in even when it’s so obviously not in their interests. Explaining how you’re right in your own jargon, based on your own principles, on your own terms, only highlights your otherness and makes your solution seem even more alien and wrong. The solution is to persuade them, in their own language, on their own terms, in light of their principles and perspective, how this is the right thing to do. And then they will gladly, willingly, agree with you.

Furthermore, even if you are clearly right and they are clearly wrong, you have to be willing to accept defeat if you cannot convince enough of them. You have to be willing to let injustice stand until such time that a majority agrees with you. I think that the descendants of slaves could testify that it could be a very long wait.

It is true that we’re at a point where we’ve left 30-to-50% of the country so far behind that we’ve essentially said “we don’t care about your opinions, because they’re outside the bounds of what the rest of us are willing to tolerate.” It’s a fairly straight line from the Civil Rights Movement onward.

On the other hand, this is happening because we (the remaining 50-70%) do consider such things as Jim Crow and criminalizing consensual homosexual activity to be unacceptable, and we don’t consider any such viewpoint to be worth tolerating. (Hence the rise of Antifa – with the Trump election, there’s no longer a sense that we can simply shove “those people” out of our way, so these groups are mobilizing to violently suppress opposition to norms they consider non-negotiable.)

But that stops making sense once you consider the categorical imperative. If you are fine with violently suppressing opposition to your norms, then you must be fine with those who don’t share your norms violently suppressing support for those norms.

Ignoring the fact that I don’t agree with the categorical imperative to begin with (specifically, that the second formulation is identical to the first and third), you’re making an assumption – that free speech is a principle in itself instead of a means to an end. If you formulate freedom of speech as an agreement to abstain from violence, then it becomes clear that advocating the violation of other people’s rights is not necessarily speech that should be protected. And the exact boundaries of what should be considered tolerated speech, and what speech should be crushed, is something that society needs to work out.

(None of this should be taken to be an endorsement of Antifa. For what it’s worth, I think they’re a bunch of loons.)

Freedom of speech is not just an agreement to abstain from violence. It is the norm that allows us to improve our other norms. If you forbid speech that argues for or against violence, then you won’t know when violence is or is not appropriate. If you don’t allow speech that argues against maintaining the rights of others, then you won’t know which rights people should or should not have. The primary benefit of freedom of speech is not protecting us from violence. It is protecting dialectic: the use of disagreement to discover the truth.

Well, we’re going to have to disagree on this. Freedom of dialectic is not the only right that matters; not being killed or harassed because of race/sex/gender/sexual orientation, for example, is in my opinion more important than being able to question whether we should be allowed to kill or harass people because of those things.

There’s a reason that when we allowed Germany to democratize again, we placed limits on what was to be allowed as a part of public discourse; there’s a reason that much of the rest of Europe has followed suit. (There are also reasons why the United States has significantly fewer restrictions, of course. Where one draws the line is ultimately a societal decision, but even we have drawn the line.)

The U.S. did not impose restrictions on the freedom of speech in Germany.

Germany’s Grundgesetz was a stopgap measure meant to keep things running until the German people could draft and enact their own formal constitution. This temporary placeholder has never been replaced.

After the surrender of Nazi Germany in 1945, the country was governed by the four Allied Powers — the U.S.S.R. in the East, and Britain, France, and the U.S. in the west. In 1948, the western powers instructed their zones to hold a constitutional convention to form a new federalist nation, and specified certain conditions for that federation. None of these conditions specified anything about freedom of speech.

The Germans had never had a federal government before, and didn’t really know what they were supposed to do. They’d been ruled by sovereigns since basically forever, and that’s all they knew. As with any other continental European people, their concept of government was something that ruled you, the person. The people didn’t limit government’s power, government restricted personal power. Like the relationship between a lord and a serf, or a parent and small child. And like those relationships, that control over the person came with a corresponding duty to take care of that person. The American concept of government — where the government ain’t your boss, and doesn’t owe you anything more than a level playing field — was literally incomprehensible.

Not that they hadn’t tried. After unification in 1871, the German Empire was nominally a constitutional republic with a parliament called the Reichstag. Except it had hardly any powers, the Emperor had almost all the power, and the Chancellor ran everything. After WWI, they experimented again with parliamentary democracy in what later came to be known as the Weimar Republic. It didn’t work very well. It also resulted in Hitler coming to power.

This is where one raises a finger and says “aha! And didn’t the Weimar constitution guarantee freedom of speech in Article 118?” And this is where one replies “no. It only guaranteed freedom of expression insofar as it wasn’t against the law.” Plenty of speech was against the law. (Including hate speech — lots of Nazis were prosecuted and even imprisoned under Weimar law for saying bad things about Jews. Repressing the nasty speech didn’t prevent the Holocaust, but only amplified the propaganda that whipped up anti-Jewish feeling.) Also, Article 48 gave President Hindenburg (no fan of democracy) unfettered authority to restrict, redefine, or even suspend this and all other individual rights. It wasn’t much of a guarantee.

Also, it wasn’t new. The 1832 constitution of the Duchy of Brunswick, for example, guaranteed freedom of religion “subject to the supervision of the government,” freedom of speech “unless a provision of law is violated,” and freedom of the press “in accordance with… the laws that may be enacted against the abuse of this freedom.” Under the Empire, similar “freedom,” celebrated by the thousands of newspapers in print prior to WWI, resulted in systematic and severe punishment of “abuses” such as opinions disliked by a Kaiser whose “downright hostility to a free press” was notorious.

Back to 1948: The Prime Ministers of the West German Länder had been commanded to create a federal democracy. They were supposed to call a convention with one delegate for every 75,000 citizens. They instead appointed a committee of “experts,” mostly bureaucrats, who went to a pretty Bavarian island in August and thought up a first draft. They had their ideas of why democracy had failed under Weimar, mostly having to do with the weakness of its system, so they beefed up the democracy stuff as they saw it. They also added important language, stating that the most important thing was human dignity. It was so important, their first article said the first duty of state authority was to respect it — and protect it.

Human dignity was a big deal in European political thinking at the time. The Nazis had done everything they could to trample it, and people wanted no more of that. The Universal Declaration of Human Rights was being put together at the same time, and it also emphasized human dignity in its first article.

Once the draft was written, the western Länder parliaments then elected 65 voting delegates, who deliberated that draft over the winter and spring of 1948-49. The western Allied Powers kept an eye on the proceedings to make sure they were complying with their mandatory conditions. Nobody wanted a repeat of Weimar or of National Socialism, and nobody wanted a state that would be snapped up by the Soviets either. The problem was, the Germans were still authoritarian at heart, and were missing some really important fundamental requirements. Like federalism. The Germans were all about centralized authority and top-down ruling, rather than bottom-up governance.

So the Allies did intervene with objections that the Germans were going too far off script. But they didn’t rewrite it for them. Nor did they impose anything on them. The objections were annoying as hell to the delegates, but no more. Eventually they all worked out a compromise that was kinda-sorta-okay with both. It preserved the historical German political philosophies, while adding “the concepts of republican government and of a legal order such as the world now considers essential to the life of a free people.”

Because the concept of popular sovereignty was still foreign, the Grundgesetz was not adopted by popular referendum, but by the Länder parliaments themselves. It took them only a few days.

Freedom of speech is covered in Article 5 of the Grundgesetz, which says everyone has the right to freely express their opinion, “subject to limitations in the provisions of general statutes, in statutory provisions for the protection of the youth, and in the right to personal honor.”

This is really no change from the phrasing under Weimar, under the Empire, and in the various old Duchies — you have freedom of speech, except when it’s against the law.

Note how it’s worded, too — it’s not that the government may not infringe upon your pre-existing right. It’s that the government is giving you this right, and can rescind it as it sees fit. The tone of the entire document is the same sense of a paternal state that rules you and has you under its protection. It’s a very common mindset even to this day in much of Europe. Americans have just as much difficulty wrapping their heads around that mindset as Europeans have comprehending our approach to rights.

It’s not just the political philosophies that seem “wrong way round” — the core cultural values also seem reversed.

In American culture, the freedom of belief and expression is the fundamental bedrock value — so ingrained in the culture, so obviously something you can do, that even at the time of the Founding people saw it as a simple truth, a right inherent in being human rather than a privilege handed out by a ruler — and not just pre-existing but a prerequisite of the Constitution itself. You don’t balance the right to speak your mind against other considerations any more than you balance the right to breathe.

That’s not how the Germans see it at all. The freedom of speech is valuable, but not the most important value. Human dignity is what’s more important. It’s not a bedrock principle of the government, either, but instead a function of government, a protection it owes its subjects.

The upshot is that, while the German constitution spells out several individual freedoms, none of them is a right, and none of them is absolute. It expressly says that most of them can be restricted by the government as it sees fit. And all of them are understood to be limited by other parts of the constitution. Individual rights are very much secondary. If there is a conflict with the government, they lose.

And government’s duty to protect human dignity means they can pass any laws they see fit to do that. And if there is a conflict between those laws and individual freedoms like speech, press, bodily integrity, assembly, choice of occupation… the protection-of-dignity law wins. (The statute has to identify the rights affected, and cannot eliminate the right wholesale, but if it does that it totally gets to affect those rights.)

It’s easy to think of these individual rights as “negative” — that they protect the individual and restrain the state. But that’s the American way of thinking. The European concept of fundamental rights is actually a “positive” function of the state — an affirmative obligation of the state in its role as protector.

So in Germany, instead of not being allowed to restrict rights, the government has affirmative duties to protect these rights and to ensure that they can be exercised. The government actively enforces your rights, not only against government, but against the actions of other people. More than that, it’s not about providing a fair level playing field, but the government is obliged to affirmatively force private parties to get out of your way. Or even to publicly subsidize private affairs. German jurisprudence is fairly clear that the “guaranteed” individual rights cannot even be exercised without the state’s assistance, by affirmative action.

Because the state is protecting citizens from each other, rather than a constitution protecting citizens from the state, it’s common for German law to protect the rights of citizen A only by restricting the rights of citizen B. Who wins? The one German law prefers.

In fact, one might argue there is a different conception of Rule of Law here. Rule of Law boils down to “power cannot be arbitrary.” Nobody’s above the law, everyone has to follow the same law no matter who they are. It ensures predictability. It’s an essential prerequisite for a successful state, and those without it are seem medieval by comparison, and are beset by corruption at best. If the same law doesn’t apply to group X — they have their own almost “private law,” or privi lege, then it’s a recipe for failure. Especially if group X consists of government officials. (*cough* police *cough*)

Many European states have extended the concept of predictability even further, to the point where if something could be regulated then it should be. Fair warning and fair procedure turns into codification. Combine that with the European sensibility of top-down government rule, and Rule of Law starts to look more like Rule BY Law. So yes, there’s liberty, but only to the extent it conforms with statutes.

So statutes aren’t limited by individual rights. It’s the other way around.

And so now you have a Germany where “illegal hate speech” is not only unprotected, but criminally prosecuted. A few days ago, a coordinated series of raid were conducted against people and homes across 14 German states because of “illegal hate speech” that people had posted on social media. What counts as “illegal?” Whatever the government decided to outlaw. There are no limits on what it can decide to outlaw. They’re free to ban and criminalize any speech they want, so long as they do so in a statute.

That’s about as arbitrary as it gets. It’s not Rule of Law. It’s authoritarianism under another name.

> Freedom of dialectic is not the only right that matters; not being killed or harassed because of race/sex/gender/sexual orientation, for example, is in my opinion more important than being able to question whether we should be allowed to kill or harass people because of those things.

It’s not an either/or. Worse, treating it as such will end with you getting neither. If it’s wrong to kill or harass people due to race/sex/gender/sexual orientation, then a dialectic will eventually convince almost everyone that that is true, and, thus, there won’t be very many of those types of crimes.

You prohibit the dialectic, you foreclose the debate, you end up with a large number of people who don’t agree that those things are wrong, and also think they’re being silenced. So you end up with no free speech and reduced consensus about those things being unethical, leading to more crime.

This is why authoritarianism — which is what you propose — is a bandaid solution that doesn’t stick.

Also, I’m skeptical of your claim that we imposed the anti-Nazi stuff on Germany. Where are you getting that from?

Nathan has me well answered on the anti-Nazi stuff being American in origin, and I withdraw my statement there. Mea culpa.

As for your statement that dialectic will always end up in the right place, I very strongly disagree. Dialectic is a tool and a process, but it won’t lead to full agreement, particularly if you’re starting from different first principles, or if people have some kind of investment (be it emotional, financial, political, or what have you) in holding their positions regardless of the evidence.

When you have imperfect people, you don’t have perfect solutions.

Nathan: Thanks for the history lesson, and the discussion of the differing zeitgeist between America and Europe. It was extremely enlightening and helpful in clarifying my own views, and I stand corrected on the origin of German hate-speech laws. I look forward to seeing more about the development of America’s conception of rights as you keep writing this chapter!

I admit that dialectic does not always result in people arriving at the correct conclusion for the reasons that you listed. However, in political discourse, as well as all questions of aesthetics and morals, it is ultimately the only tool that we have. If you give up the only tool that you have to discover the truth, then you are just flying blind. Nothing is worth that.

If, as you claim, freedom of speech is limited to not promoting violence, then wouldn’t any debate in Congress about going to war be illegal?

In my viewpoint, freedom of speech IS an end in itself. If we cannot debate all issues, from all viewpoints, then how can we be sure we are correct in our conclusions? If an idea like racial supremacy is invalid, as i believe it is, then rational debate will prove that in the end. By allowing proponents of the idea to speak and opponents of the idea to rebut them, one can hope to convince at least some of those who are wrong. By suppressing the speech, there is no possibility of this.

You have just described seat belt laws. Also helmet laws, but those are rarer, and generally confined to minors.
I wear mine because I like to live, but it rankles that I must, or face a fine.
The government has basically told me that A. wearing a seat belt is the only reasonable choice. B. anyone who decides otherwise is obviously not in a reasonable state of mind, thus C. they can be forced to comply, since they aren’t competent in their own affairs.

I’m tempted to create a jacket with a diagonal stripe in seat belt material, starting from the left shoulder, so it looks like I’m wearing a seat belt, even when I’m sitting in a chair that lacks such.

Uh, but the restrictions to free speech in the US, e.g. clear and present danger, are imposed by the judiciary, not through democratic process. :)

SeanR, you have to wear a seatbelt so that if you get in a wreck nobody has to clean up your bloody carcass off of the road because it flew through the windshield. Driving on public roads is a privilege, not a right. Of course, motorcycles should be illegal too by the same argument. What do ER crews call motorcyclists? Organ donors.

But I also have two boys who, when not roughhousing and breaking things and magically failing to notice chores that need doing, would eat every food item not locked in a guarded vault… so it would be inhuman of me to accept.

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